Alberta chief wins 7th term after only challenger disqualified by rare linguistic rule

The O'Chiese First Nation in central Alberta will elect a new band council this week, but the race for chief — a job that comes with a six-figure salary — has already been decided.

Darren Whitford won his seventh term as chief by acclamation because no other candidates legally registered to run against him.

It wasn't for lack of trying.

Adrian Strawberry, who ran against Whitford in 2015 and lost, wanted to run again in 2017. But he says new election rules are being unfairly used to disqualify him as a candidate, based on a rare linguistic requirement.

Elections on O'Chiese, located about 50 kilometres northwest of Rocky Mountain House, used to be governed by the Indian Act.

But the band voted by a 170-139 margin last fall to adopt its own custom election code, which includes a provision that candidates "must be fluent" in one of the local Indigenous languages.

Strawberry contends he speaks Saulteaux fluently — and other members of the First Nation confirmed to CBC News that he does. But he says he was never given the opportunity to prove it beyond a brief test at the nomination meeting, which he passed.

"They checked how well can he speak his Saulteaux, and he totally can speak all that," said Emilie Bradshaw, an O'Chiese elder who nominated Strawberry as a candidate for chief.

Strawberry said he paid his $500 registration fee — another new requirement under the custom election code — and left the Jan. 11 nomination meeting after being told his candidacy was all in order.

But later that day, he said he received a text message from chief electoral officer Bernie Makokis, saying concerns had been raised about his fluency.

They met to discuss it and Strawberry said they agreed his name would stand for the time being and he would take a "linguistic fluency test" within three days.

"I left thinking, 'OK, that's fair enough,'" Strawberry said. "I can try to prove I am fluent in the language."

Despite his repeated requests, Strawberry says a test was never granted. And late in the day on Friday, Jan. 13, Strawberry said Makokis sent him an email saying his name was being stripped from the nominee list.

The following Monday, Makokis declared Whitford chief by acclamation.

"I was obviously very livid," Strawberry said.

"That's absolutely unacceptable."

Strawberry launched an appeal under the new election code — at a cost of another $1,000 — noting another candidate for council was granted a language test when questions were raised about his fluency.

In a Jan. 30 letter to Makokis, the appeal board chairperson said "fair and equitable processes did not occur" and directed him to set up a panel of three elders from O'Chiese and the neighbouring Sunchild First Nation to test Strawberry's linguistic skills.

But that never happened, either.

'Up to the chief electoral officer'

Makokis declined to answer any questions about Strawberry's candidacy, directing all inquiries to the band's lawyer.

"I'm not allowed to talk to anybody," he told CBC News. "It has to go through legal."

O'Chiese general counsel Connie Tuharsky said she didn't know why Strawberry wasn't granted a fluency test, but insisted Makokis' decision was final.

"All I can tell you is that it's up to the chief electoral officer to determine whether or not an individual can be a candidate," she said.

Furthermore, Tuharsky said the custom election code only allows candidates to file appeals after the election and does not provide for appeals of a candidacy prior to the vote.

"I don't know why the appeal board would have made that decision, or was even involved, because they don't have any jurisdiction to tell the chief electoral officer what to do," she said.

The chief electoral officer is appointed by the band council.

6-figure salary, 4-year term

The new election code expands the band council terms to four years, up from two years previously.

The job of chief comes with a six-figure salary, according to the band's financial disclosures, which show Whitford earned $122,000 in the 2014/15 fiscal year and charged another $43,436 in expenses.

The year before, Whitford was among the most highly paid chiefs in Canada, with reported remuneration of $164,453 and expenses of $100,778.

Whitford did not reply to interview requests from CBC News.

The O'Chiese First Nation has 1,374 registered members, according to the federal government, but not all live on the reserve.

The on-reserve population was 789, according to the 2016 census.

Custom election codes elsewhere

Most First Nations on the Prairies have adopted custom election codes, according to the Centre For First Nations' Governance.

The non-profit organization, which helps Indigenous people develop self-governance, says language requirements are rare, however, as strict fluency rules can make it practically difficult in many communities to find a large enough pool of candidates.

"Another concern might be how to decide whether a candidate has enough knowledge or fluency," the centre explains in a published set of guidelines on custom election codes.

"Who would decide, and on what basis? This might become contentious."

Professor Kirsten Anker, who teaches Indigenous law at McGill University, said the federal government typically doesn't get involved once a First Nation adopts a custom election code, but other codes have been challenged in federal court.

"That kind of issue — have they applied their own rules properly? — that's the kind of thing that could go to court," she said.

Strawberry said he plans to file another appeal after the Feb. 16 election and is prepared to go to court after that.